Allan v. Jones & Co.'s Trustee [1901] ScotLR 39_263 (20 December 1901)

Allan v. Jones & Co.'s Trustee [1901] ScotLR 39_263 (20 December 1901)

The receipted invoice was an attempt to create a security over moveables left in the debtor's possession; no effectual security was thereby created; realisation of the bicycles within sixty days of bankruptcy was in contravention of Act 1696, cap. 5; payment of proceeds to the lender was not a cash payment in ordinary course of business; the trustee is entitled to recover the entire proceeds from the lender.

Citation
[1901] ScotLR 39_263
Parties
Pursuer and Respondent, Trustee on Jones & Company's Sequestrated Estates: William Brodie Galbraith, C.A., Glasgow; Defender and Appellant: William Allan, agent of the Royal Bank at Saltcoats; Bankrupts, Borrowers: Jones & Company (Mrs Margaret Hunter or Jones, sole partner; George Jones, partner)
Jurisdiction
Scotland
Judgment Date
20 December 1901
Procedural Posture
Appeal From Sheriff Court Judgment / Final Appellate Judgment, Inner House Second Division
Outcome
appeal dismissed, interlocutor affirmed
Legal Topics
Security Over Moveables, Transaction in Form of Sale Intended as Security, Effect of Retention of Possession, Contravention of Bankruptcy Act 1696, Application of Sale of Goods Act 1893
Bankruptcy Secured Transactions Sale of Goods Security Over Moveables Transaction in Form of Sale Intended as Security Effect of Retention of Possession Contravention of Bankruptcy Act 1696 Application of Sale of Goods Act 1893

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Parties

William Brodie Galbraith, C.A., Glasgow

Pursuer and Respondent, Trustee on Jones & Company's Sequestrated Estates

William Allan, agent of the Royal Bank at Saltcoats

Defender and Appellant

Jones & Company (Mrs Margaret Hunter or Jones, sole partner; George Jones, partner)

Bankrupts, Borrowers

Procedural Posture

Appeal From Sheriff Court Judgment / Final Appellate Judgment, Inner House Second Division

Legal Issues

  1. 1 Whether a receipted invoice intended as security over moveables left in debtor's possession creates an effectual security
  2. 2 Whether realisation of goods within sixty days of bankruptcy contravenes Act 1696, cap. 5
  3. 3 Whether payment of proceeds to lender constitutes cash payment in ordinary course of business

Ratio Decidendi

The receipted invoice was an attempt to create a security over moveables left in the debtor's possession; no effectual security was thereby created; realisation of the bicycles within sixty days of bankruptcy was in contravention of Act 1696, cap. 5; payment of proceeds to the lender was not a cash payment in ordinary course of business; the trustee is entitled to recover the entire proceeds from the lender.

Court Disposition

appeal dismissed, interlocutor affirmed

Orders

  • Defences repelled
  • Defender decerned for payment of £25 sterling with interest to pursuer